Kashmiris sold out

The Kashmir claim

M.A. Niazi
It was interesting enough for President Pervez Musharraf to say that, in order to find a solution, Pakistan was willing to ‘give up Kashmir.’ But to add zest to whatever dish is cooking up on the back-channel backburners, Foreign Office spokeswoman Tasneem Aslam has stated confidently that Pakistan has never had a claim to Kashmir. Technically, at a superficial level, that is correct. However, a close examination of the Constitution indicates that Pakistan does have an institutionalised claim on Kashmir, and its self-denial is not as complete as one would think. Of course, in this day and age, the national interest as defined by the COAS in the company of the Corps Commanders has been known to override explicit provisions of the Constitution, so if an FO spokesperson disregards mere implications, he or she is merely staying in line with the spirit of the times.
The major difference between Pakistan and India, which is also the reason there’s a Kashmir issue, is that Pakistan regards Kashmir as unfinished business, India as a settled matter. Pakistan treats Azad Kashmir as an interim status which will only be given permanent status after the plebiscite conducted under UN supervision; India sees Kashmir as having joined the Indian Union finally in 1957, with no room for a re-opening of the issue.
From Pakistan’s point of view, the whole of the old Jammu and Kashmir State has to have its fate decided. From India’s the only issue left is whether to forgo its claim to that portion of the State that Pakistan is illegally occupying.
Structurally, India has included Jammu and Kashmir State in the Indian Union by virtue of its Constitution, which provides it special status, which was diluted in the 1970s, thus provoking the long armed freedom struggle which started off in 1989.
On the other hand, Pakistan’s relationship with Azad Kashmir, or rather the Free State of Jammu and Kashmir, is not determined by the 1973 Constitution, but by the 1974 AJK Interim Constitution, which is a temporary document providing for the structures governing AJK until a final post-plebiscite solution is reached.
That is why Held Kashmir has a Governor and CM like other Indian states, but AJK has a President and PM of its own, as well as its own Supreme Court and civil service. True, AJK is defended by the Pakistan Army, its currency is the Pak rupee, and its ‘subjects’ (not citizens) travel on Pakistani passports (as well as being eligible for recruitment to its federal services). However, Pakistanis who go to AJK for the first time are put a little off-balance to hear Kashmiris speaking of Pakistan as a separate country. This is not necessarily meant in a negative way: I will never forget the elderly gentleman who had tears in his eyes when he spoke of his longing to die as a Pakistani; that is, when Kashmir Pakistan ban jayega.
In 1949, there was an agreement between the Government of Pakistan, represented by the Federal Minister in charge, Mushtaq Gurmani, and the AJK Government, represented by its President, Ch Ghulam Abbas, which settled that Pakistan would, on behalf of the AJK Government, and until the plebiscite and its result, handle defence, communications, foreign affairs and currency, as well as administer the Northern Areas separately. The Northern Areas are an odd anomaly. Leased by the British Government from the Dogra Maharaja, it was administered separately until Partition, when the lease stood cancelled, and the Gilgit Subah reverted to Dogra rule. A Dogra Viceroy actually arrived there, but never took over the administration, because of a revolt by the Gilgit Scouts, who declared for Pakistan even before anyone in Kashmir did.
The Northern Areas are administered separately, but cannot be absorbed into Pakistan, because of the unsettled status of all of the old Kashmir State. While AJK has been given its own constitutional structures, the Northern Areas have lagged behind, though there has been slow progress over the decades, and now it is somewhere between a district nazimate and a province.
Meanwhile, The AJK Interim Constitution provides for an AJK Assembly, as well as an AJK Council, which is AJK’s highest decision-making body, and which includes representation from both the Government of Pakistan and the people of AJK. This plays the role that the federal Parliament plays with respect to Pakistani provinces. Practically, because AJK is economically dependent on Pakistan, the latter dominates the relationship, but theoretically, it is AJK which has linked itself to Pakistan, not the other way around.
So Tasneem’s statement, it seems, is technically correct, right? Not quite.
There are two articles of the 1973 Constitution which have a direct bearing on the Kashmir issue, Articles 1 and 257, reproduced below:
1. The Republic and its territories.
(1) Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.
(2) The territories of Pakistan shall comprise-
(a) the Provinces of Baluchistan, the North West Frontier, the Punjab and Sind;
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) the Federal Administered Tribal Areas; and
(d) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.
(3[originally (4)]) Majlis-e-Shoora (Parliament) may by law admit into the Federation new States or areas on such terms and conditions as it thinks fit.
(3[omitted by the First Amendment, 1974]) The Constitution shall be appropriately amended so as to enable the people of the Province of East Pakistan, as and when foreign aggression in that Province and its effects are eliminated, to be represented in the affairs of the Federation.

257. Provisions relating to the State of Jammu and Kashmir.
When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.

The original provisions, including a reference to East Pakistan, contemplated the four provinces, the former princely states which had been merged into One-Unit, the ICT and FATA, as well as ‘such States and territories’ which were already in Pakistan, or might be, whether they had acceded or had entered in some other way, such as liberation (like the Northern Areas and AJK). These areas were not specified, but had to be given cover, because for many purposes, they are indeed part of Pakistan. This means that there is a constitution-based claim. It was ambiguous, probably deliberately so, because the constitution-makers had no wish to dilute Pakistan’s stand by seeming to accept the status quo, but there is an implicit understanding that Pakistan has a claim to AJK, and indeed the rest of the State.
Article 257 deals directly with the question of accession. It provides a specific exception to the general rule that any fresh admission to the Federation would be by legislation setting out the terms and conditions. It implies that after the plebiscite acceding to Pakistan, the terms and conditions of the admission to the Federation would be in accordance with the wishes of the people of Kashmir, not simply determined by Pakistan’s Parliament.
This implies that Pakistan cannot constitutionally ‘give up’ its claim to Kashmir. Of course, if the people of Kashmir reject Pakistan in a plebiscite, the language of both Article 1 and Article 257 allow Pakistan to cede even the Northern Areas and AJK, but a permanent division of the State is also not possible while remaining within the framework of the Pakistani Constitution. Here too, it seems, we have a mirror-image with the Indian position. However, in Pakistan it is possible to ignore the Constitution, whether it be on small points like the compulsion on the President to address Parliament every year, no matter how rude the reception he gets, or on major points like how to remove an elected government by armed (albeit bloodless) action.
However, it seems that the national interest must prevail. If the Kashmiris have to be sold down the river, then let it be done. India has taken a stand on its might, on its own resources. Pakistan’s solution, through the UN process, depends on the goodwill of the UN Security Council’s veto powers. And since they all respect might, India gets its way. A just solution of the Kashmir issue will not be found by relying on the logic of the situation. But it seems that now Islamabad is no longer willing to buck the logic, as it had been doing so successfully for over five decades.
E-mail: maniazi@nation.com.pk